UPDATES & ANALYSIS

Justice Scalia’s death could affect an Iowa college’s challenge to the contraceptives mandate

by Rox Laird | February 23, 2016

The Little Sisters of the Poor, a Catholic order of nuns, say their religious principles are violated by the Obamacare mandate that contraceptives must be covered by employer health insurance. The sisters’ appeal is one of seven combined cases set for argument next month before the U.S. Supreme Court on that question.

The outcome of these appeals was thrown into question following the death of Justice Antonin Scalia. And, Iowa and six other Midwestern states could be uniquely affected by the outcome.

All but one of five federal appeals courts that have ruled on this issue upheld the legality of the Affordable Care Act’s contraceptives mandate. The exception was the Court of Appeals for the Eighth Circuit, which covers Iowa, Minnesota, North and South Dakota, Nebraska, Missouri, and Arkansas.

As On Brief reported in September, the Eighth Circuit’s ruling – which included an appeal by Dordt College in Sioux Center — propelled this issue to the U.S. Supreme Court to resolve this split among the federal courts.

It was assumed the Supreme Court would side with the Little Sisters of the Poor, in light of its 2014 Hobby Lobby decision that struck down the contraceptives mandate for a closely held private business whose owners object on religious grounds. But that case was decided 5 to 4, and without Justice Scalia’s vote, the court could be evenly divided.

It’s anyone’s guess what the court might do in that situation.

Some speculate a majority of the court, seeing a need to clearly resolve the issue, will try to reach a consensus (among those of this opinion are Tom Goldstein, founder of the popular SCOTUSBlog who frequently argues cases before the Supreme Court). Others say the court would likely postpone the case to be reconsidered once Justice Scalia is replaced.

Or, the court could issue a decision with the four Hobby Lobby supporters on one side and the four dissenters on the other. That means there would be no controlling decision, and that would leave the decisions of the lower courts in place. 

In other words, there would be one legal standard for Iowa and six other Midwestern states and a different one in the states where lower courts upheld the contraceptive mandate. And it’s unclear what the law would be in the states where there are no definitive federal court rulings.